A formerly homeless veteran who accused Augusta police of false arrest and excessive use of force over a 2010 incident at the Bread of Life Shelter has lost an appeal for a new trial.

Michael J. Albert Sr., now 61, said newly discovered evidence might have resulted in a different verdict, but a federal appeals panel upheld a ruling denying him a new trial.

The decision was issued Monday.

Attorney Edward Benjamin, who represented the officers as well as the city and the other defendants dismissed from the case earlier, had asked the panel to affirm a decision by U.S. Magistrate Judge John C. Nivison.

In an email sent Tuesday, Benjamin said: “I am pleased that the appellate court rejected Mr. Albert’s request for a new trial, but not surprised. His request for a new trial, based on ‘newly discovered evidence’ in the form of a witness he claims he only located after trial, clearly was meritless.”

Albert, who now lives in Bangor, had represented himself in the appeal, and a cellphone number for him was not working on Tuesday.

In May 2016, a jury in U.S. District Court in Bangor cleared the two officers, Benjamin Murtiff and Vicente Morris, of excessive use of force. Nivison had found in favor of the Augusta police on several other counts.

Albert sought a new trial almost immediately after the verdict was rendered, saying he finally had located William Harris, another homeless veteran who had witnessed Albert’s arrest after Albert refused to leave the shelter on Aug. 4, 2012, when asked to do so by the shelter manager.

Albert had said he suffered a torn rotator cuff when officers forced his outstretched left arm behind his back while handcuffing him.

The officers both testified at trial and denied using excessive force.

“If he would have left when we asked him to leave the first or second time, we would have allowed him to leave and go about his business for the rest of the night,” Murtiff said on the stand.

Nivison refused to grant a new trial, saying Albert had four years between his arrest and his trial to find Harris.

“In addition, although Mr. Harris’s proffered testimony might have supported Plaintiff’s version of the incident, the court is not persuaded based on the evidence at trial that Mr. Harris’s testimony would change the result of the trial,” Nivison wrote in August 2016.

Albert then appealed that to the 1st U.S. Circuit Court of Appeals in Boston.

In a brief filed in February 2017, Albert reiterated his position that he “was sitting down at a picnic table not bothering anyone and did nothing wrong and was assaulted by the Augusta Police Department.”

The three-judge appeals panel ruled that Nivison used the correct legal standard in making the decision.

Betty Adams can be contacted at 621-5631 or at:

[email protected]

Twitter: betadams

filed under: